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02/12/96 STATE TENNESSEE V. CHARLES N. HOWELL

February 12, 1996

STATE OF TENNESSEE, APPELLEE V. CHARLES N. HOWELL, APPELLANT


KNOX COUNTY. HON. MARY BETH LEIBOWITZ, JUDGE. (Second Degree Murder).

Joe B. Jones, Judge, Concur: (Not Participating) Jerry Scott, Presiding Judge, Walter C. Kurtz, Special Judge

The opinion of the court was delivered by: Jones

The appellant, Charles N. Howell, was indicted for the first degree murder of his wife, Mozella Howell. Following a jury trial, he was convicted of the lesser included offense of second degree murder and sentenced to twenty-one years with the Tennessee Department of Correction as a Range I standard offender. In this appeal as of right, he raises the following issues:

(1) Whether the evidence presented at trial was sufficient to support a verdict of second degree murder?

(2) Whether statements made by the victim just prior to her death regarding her fear of the appellant were properly admitted at trial under the "state of mind" exception to the hearsay rule?

(3) Whether the trial court properly considered the enhancement and mitigating factors in arriving at a sentence of twenty-one years?

FACTS

On Monday afternoon November 30, 1992, the appellant turned himself in to the Knoxville Police Department for shooting and killing the woman who had been his wife for twenty years. According to Tonya Ivory, the victim's daughter, her mother had driven to her apartment and honked the horn around 8:15 that morning. After Ms. Ivory got into the parked car with her mother, the victim told her daughter that the appellant planned to kill her. The victim said, "I don't know if it is going to be the end of this week, or the end of this day, I don't know, I got a feeling he didn't go into work. . . . Look, Charles is going to kill me. I am not asking you to believe it. I'm asking you to accept it. The only way that I am going to live is if Charles drops down on his knees and asks God for forgiveness, and take [sic] killing me out of his heart, but he is beyond that." The victim made plans to go with her daughter to secure an order of protection.

After this brief conversation, Ms. Ivory heard an approaching vehicle and recognized it to be the car of her stepfather, the appellant. Ms. Ivory "said a few choice words" to the appellant, and, upon realizing that he had a gun, she urged her mother to leave. However, the victim had trouble starting her car, and as Ms. Ivory was going inside for help, she saw the appellant shoot her mother. Several persons who lived in the apartment complex also witnessed the crime in part. One, an off-duty police officer, testified at trial that he rushed outside after being awakened by several gunshots. Upon seeing the appellant, the police officer held a gun on him and ordered him to drop the gun he had, but the appellant disobeyed and left in his car. Another witness, a maintenance worker at the apartments, looked out of his window after hearing a gunshot and saw a man at the driver's side of the victim's car. He testified that this man then got in his car, pulled forward, got out of the car, shot more times into the driver's side of the victim's car, and lastly, walked around to the passenger's side of her car before departing. Linda Minton, another neighbor noted that she saw the appellant walk from one side of the victim's car to the other and then slowly drive off as though he were not in a hurry. A final witness, James Odell, rushed out onto his sun porch when he heard the gunshots. He testified that a black man was yelling into the car, "get out of the car, bitch, get out of the car, I told you, get out of this car, I want to talk to you, get out of the car." He then saw the man fire three shots into the driver's side of the victim's car before leaving.

Some time prior to Mozella Howell's death, she had become acquainted with Bruce Wright, an inmate at the Northeast Correctional Center in Mountain City, Tennessee. According to the victim's daughter, Ms. Ivory, the victim met Mr. Wright through the appellant's and her son, Janardo, who was imprisoned in the same facility. Ms. Ivory testified that the relationship began as part of the victim's prison ministry and that her mother did not actually meet Mr. Wright in person until earlier that November. Ms. Ivory said that she was only aware of two letters that her mother received from Mr. Wright which came to Ms. Ivory's address. The letters, which were admitted into evidence, indicated that the victim and Mr. Wright were romantically involved and had plans for a future together.

Apparently, the appellant first became aware of his wife's relationship with Mr. Wright when he discovered some mail that she had received from him on the Saturday morning before the murder. Prior to this time, the appellant had expressed concerned over his ever-increasing phone bill which consisted primarily of collect calls from Mountain City, Tennessee. However, he had believed that all of the calls were being made by his son Janardo. Though the appellant could not read well, his suspicions were aroused when he noticed that the letter referred to his wife as Mozella Wright and mentioned love. He found a second letter in his wife's purse in which he read the words, "I want to be your wife" and "Bruce, I love you. I am trying to get rid of Charles, but the plan is not working." The appellant testified that the letters made him "hurt on the inside." When he confronted his wife, she tore the letter into pieces and acted unconcerned.

Subsequent to his discovery, the appellant and the victim spent Saturday afternoon shopping for some items to send their son and for a ring for the victim's upcoming birthday. According to the appellant, his wife did not stay in their home on Saturday night nor did he see her at all on Sunday. On Sunday, the appellant attended church and talked with two pastors about his marital problems. On Monday, the appellant drove to work as usual, but because he was ill with a cold, he soon returned home. As his wife was not at home, he decided to go to Ms. Ivory's to find her. He said that he took his gun because he "didn't take no chances on Tonya [Ivory]" who had cut the appellant in the past. The state pointed out that this incident had occurred over ten years earlier when Ms. Ivory was thirteen years old. Also, the appellant admitted on cross-examination that he did not always carry a gun when he visited Ms. Ivory.

The appellant testified that he remembered very little about the shooting. He did recall that, when he got out of the car and began walking over to talk with the victim, Ms. Ivory ran toward him with her hands up as though she were going to attack him. He did not remember if he shot at Ms. Ivory. He did not even remember shooting the gun. A specialist from the Knoxville Police Department testified that he recovered two bullets from the driver's side of the car in which the victim was killed. The doctor who performed the autopsy on the victim opined that she died from a single gunshot which entered her left side and passed through her stomach and heart.

I.

In his first issue, the appellant contends that the evidence presented at trial was insufficient to prove second degree murder but, rather, it showed that he killed his wife while in a state of passion. He argues that, though he proceeded as usual after he discovered the letters, he was suppressing his anger and emotional turmoil which "all came together in one short catastrophic moment when the passion overcame [his] ability to act rationally." When sufficiency of the evidence is an issue, our task is not to determine whether the evidence adduced at trial would support a different verdict, but whether it is sufficient to support the verdict actually returned by the jury.

In making the sufficiency determination, this Court does not reevaluate the weight or credibility of the witnesses' testimony as those are matters entrusted exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Wright, 836 S.W.2d 130, 134 (Tenn. Crim. App. 1992). Nor may this court substitute its inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). The relevant question on appeal is whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have determined that the essential elements of the crime were established beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 314-24, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979).

Second degree murder is defined as the "knowing killing of another." Tenn. Code Ann. § 39-13-210 (Supp. 1995). "Knowing refers to a person who acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result." Tenn. Code Ann. § 39-11-302(b) (1991). Voluntary manslaughter can also be a knowing killing, but it is one which is committed "in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner." Tenn. Code Ann. § 39-13-211(a) (1991). In arguing that his conviction should be reduced to manslaughter, the appellant relies upon Whitsett v. State, 201 Tenn. 317, 299 S.W.2d 2, 6-7 (1957), and Drye v. State, 181 Tenn. 637, 184 S.W.2d 10, 13 (1944), to support his contention that suppressed anger may accompany passion. In those cases, the court focussed on the fact that each defendant's passion had not cooled since he received the information that first provoked his passion and the ensuing murder. As our Supreme Court more recently noted in a case similar to this one, "if there [is] sufficient time for the passion or emotion of the defendant to cool before the shooting, then a verdict of murder [rather than voluntary manslaughter] might be sustained." State v. Thornton, 730 S.W.2d 309, 313 (Tenn. 1987).

In this case, at least two days and two nights passed after the appellant discovered the letters between his wife and her paramour. While we note that the time interval between the provocation and the shooting is a consideration, State v. Brown, No. 1195, 1989 WL 3177, at *2 (Tenn. Crim. App. Jan. 19, 1989, at Knoxville), we think it much more significant, even determinative, that the appellant did not appear to be in a state of passion during the entire time period. Indeed, his own testimony revealed that he proceeded as usual. He went shopping with his wife on Saturday to purchase a birthday ring for her as well as some items for them to send to their son. He went to work on Monday morning and soon returned home only because he was ill with a cold. The appellant did speak with two pastors regarding his marital problems on the day before the murder. While that fact indicates that the appellant was upset, it is insufficient to support a Conclusion that the appellant murdered his wife the following day in the heat of passion. The degree of homicide is an issue which is within ...


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